Tag: Jury Nullification

Conscientious Acquittal a/k/a Jury Nullification

George Noga

A majority is one person with courage.

Conscientious Acquittal a/k/a Jury Nullification

By: George Noga – June 17, 2020

      In America, the right of a juror to vote conscience is enshrined in our founding documents. Jury trial is the only right mentioned in both the Constitution and Bill of Rights and more words are devoted to it than any other right. The founders intended to put citizens at the very heart of the criminal justice system. Plea bargains, unknown at our founding, now account for over 95% of all criminal cases. Following are but ten situations where a juror may choose to exercise conscientious acquittal.

  1. The accused never intended to commit a crime
  2. An honest citizen acting in good faith violated vague or unknown laws
  3. Victimless crimes
  4. Crimes where the probable or minimum sentence is out of proportion
  5. Laws that should not exist
  6. Disagreement with the way the law is being applied or selectively enforced
  7. Abuse by police or prosecutors or charges that are political in nature
  8. Overzealous enforcement, reliance on paid informants or profiling
  9. Instances where justice would not be served by a conviction
  10. Matters of morals or conscience

Closing Speech to the Jury in a Case Crying Out for Nullification 

       Ladies and gentlemen of the jury: Under our Constitution and common law you are sovereign. You can vote to acquit my client for any reason or for no reason and never be held to account or to explain. You have absolute power to ignore your juror’s oath and the judge’s instructions. This is a sacred right with a lengthy and honorable provenance and is intended for cases like this that cry out for conscientious acquittal.

      The Constitution provides 5 sources that have veto power before a law can punish an accused; you are familiar with 4 of them: (1) house of representatives; (2) senate; (3) president; and (4) judiciary. This jury is the fifth and final source of veto power. Even if a law is passed by both houses of congress, signed by the president and upheld by the judiciary, it will not stand if juries such as this one refuse to convict under it. This is consistent with our Constitution and repeated Supreme Court rulings and is as understood by our founding fathers. John Adams said, “It is not only a juror’s right, but his duty to find the verdict based on his own judgment and conscience.”

     The right to jury nullification goes back over 1,000 years. In 1670 William Penn was tried in London for preaching Quakerism. The judge wanted Penn convicted but the jury refused. The judge jailed the jury for four days without food or toilet facilities, but they still refused to convict. Ultimately, England’s highest court ruled that a juror’s right to reject law and vote conscience is traceable to Magna Carta signed in 1215 and even further back many centuries to Anglo-Saxon customs and practices.

     Conscientious acquittal has a long, glorious history in America. The Salem witch trials ended only after 52 straight acquittals or hung juries. Juries refused to enforce the Navigation Acts in the 1760s causing England to restrict jury trials. Northern juries in the 1850s acquitted abolitionists charged under the Fugitive Slave Laws. Nullification speeded the end of prohibition. Juries acquitted protesters during the Vietnam War and refused to convict those charged with consensual sex under sodomy laws. In 2012 an Iowa jury acquitted trespassing occupy members peacefully protesting at the statehouse. Immediately thereafter, 15 others similarly accused demanded jury trials.

     Your duty as jurors goes well beyond determining facts and includes a duty to prevent injustice. This case cries out for conscientious acquittal. Use your independent life experience, concept of justice, wisdom and beliefs; do not mindlessly follow the judge, other jurors or a flawed law. You can and must hang a jury, by yourself if necessary if your conscience so dictates. You must resist pressure from other jurors to compromise. Ignore the cost of a retrial; it is your right and your duty.

       Ladies and gentlemen of the jury, history shines on courageous juries. Remember what your valiant ancestors did for peaceable Quakers, accused witches, fugitive slaves, war protestors and persecuted gays and then do your duty as a sovereign jury. By doing so, other juries will follow suit; even one solitary American citizen voting his/her conscience can bring about justice for 325 million countrymen.

        Finally, always remember that a majority is one person with courage!

Next on June 21st, we explain why governments fail.  
More Liberty Less Government  –  mllg@mllg.us  –  www.mllg.us
MLLG

Jury Nullification – Closing Argument to Jury

George Noga
By: George Noga – October 10, 2014

      Of all I learned writing this blog, nothing is more crucial to achieving more liberty and less government than the issue of jury nullification, i.e. the idea that juries are sovereign and have the absolute right to vote to acquit for any reason. The right to a jury trial was enshrined in the Constitution and Bill of Rights not solely for the defendant, but for the jury. Nullification is not to be used lightly; but following are 10 specific examples where it may apply.

  1. Laws have proliferated such that honest citizens acting in good faith unknowingly violate laws they never knew, or reasonably should have known, existed or that were so vague as to be meaningless;
  2. The accused never intended to commit a crime and did not have a mens rea – or guilty mind – which formerly was a requirement for charging or convicting citizens;
  3. Victimless crimes;
  4. Laws that shouldn’t exist like Wisconsin’s making it a crime for a farmer to provide raw milk to the owner of the cows he boards even though consuming raw milk is perfectly legal;
  5. Crimes for which the probable sentence (or minimum sentence) is out of proportion;
  6. Disagreement with the law or the way it is being applied; laws only seldom or selectively enforced;
  7. Abuse by police or prosecutors and/or charges that are political in nature;
  8. Overzealous enforcement or profiling – one third of all adults have been arrested as have 40% of males before age 23 – 50% for black males under age 23. This is prima facie unreasonable;
  9. Instances where justice is not being served; and
  10. Matters of conscience.
     Although widely sanctioned and practiced in the early years of our republic, today defense attorneys seldom are permitted to raise jury nullification at a trial. It should be permitted throughout our land. Following is the closing argument I would address to a jury if I were the defense attorney in a case that cried out for jury nullification.
Closing Speech to Jury from Defense Attorney
      Ladies and gentlemen of the jury: Under our Constitution and common law you, when sitting as a jury, are sovereign. This means you can vote to acquit and thereby nullify the charges against my client for any reason or even for no reason and not be held to account or even asked to explain. You have absolute power including the right to ignore your juror’s oath and the judge’s instructions. This is a sacred right with a lengthy and honorable provenance.
      In 1670 William Penn was tried in London for the putative crime of preaching Quakerism. The judge wanted him convicted but the jury refused. The judge then jailed the jury for four days without food, water or toilet facilities; they still refused to convict Penn. Ultimately England’s highest court ruled that a juror’s right to reject law and to vote conscience is traceable to the Magna Carta signed nearly exactly 800 years ago in 1215. Our laws are based on and incorporate English common law which, of course, traces back to Magna Carta and even earlier.
       In America, a juror’s right to vote conscience emanates from the Constitution and Bill of Rights. The Constitution provides five separate sources with effective veto power before any law can be used to punish an offender; these are: (1) house of representatives; (2) senate; (3) president; (4) judiciary; and (5) jury. Even Congress passes a law, the president signs it and the courts allow it, the law will not stand if juries such as this one refuse to convict under it.
       The right of juries to nullify was well understood by our founding fathers. President John Adams said: “It is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court.” President Thomas Jefferson said: “Trial by jury is the only anchor by which a government can be held to the principles of its constitution.” The first chief justice, John Jay, stated: “The jury has the right to determine both the law and the facts.” I could continue for a long time with other similar quotes from great Americans, but I believe you already understand.

      Jury nullification has a long and glorious history in America; let me tell you about just a few of the many instances where valiant juries have voted their conscience.

  • The Salem witch trials in 1692 ended for one reason and one reason only: jury nullification. Beginning in 1693 there were 52 consecutive hung juries and/or acquittals and prosecutors ceased bringing new cases.
  • In the 1760s juries refused to enforce forfeitures under the Navigation Acts. England then restricted jury trials as part of the Intolerable Acts which led directly to the American Revolution.
  • In the 1850s northern juries began acquitting abolitionists under the Fugitive Slave Laws.
  • In the 1890s corporations began losing jury verdicts in cases involving the organization of labor unions and strikes resulting in workers winning the right to organize.
  • Jury nullification played a big role in ending prohibition in the 1930s.
  • During the Vietnam War, juries acquitted protesters when informed of their sovereign power.
  • Juries refused to convict admitted consensual sex among adult gays under sodomy laws.
  • In 2012 an Iowa jury acquitted an “occupy” protester who admittedly violated curfew and trespass laws to remain on the grounds of the statehouse to peacefully protest. Immediately thereafter, 15 others accused under the same laws demanded jury trials.
      Ladies and gentlemen of the jury, this case cries out for you to nullify an unjust law. Use your independent life experience, concept of justice, wisdom and beliefs; do not mindlessly follow the judge, other jurors or a bad law. You can and must hang a jury, by yourself if necessary, if your conscience so dictates; you must resist all pressure from other jurors to compromise. Ignore the cost of a retrial. It is your right and your duty.
“A majority is one person with courage.”
     History shines upon courageous juries. Remember what your valiant ancestors did for peaceable Quakers, accused witches, fugitive slaves, workers’ rights, war protestors and persecuted homosexuals and do your duty as a sovereign jury. By doing so, other juries will follow suit; even one solitary American citizen voting his or her conscience can overturn an unjust law for a nation of 315 million. Finally, always remember that a majority is one person with courage!